District Court

Eli Richardson – Nominee to the U.S. District Court for the Middle District of Tennessee

Strictly speaking, judges are not agents of law enforcement.  Rather, they serve as neutral magistrates, balancing the playing field between the prosecution and the defense.  Nevertheless, several prominent judges have risen to the bench with law enforcement experience.  For the second time this year (after Trevor McFadden in June), President Trump has nominated a former law enforcement official to the federal bench: former FBI agent Eli Richardson.

Background

Eli Jeremy Richardson was born in 1967.  He attended Duke University, graduating with a Bachelors of Engineering degree in 1989.  Richardson went on to Vanderbilt Law School, overlapping slightly with another Trump judicial nominee, Claria Horn Boom.  At Vanderbilt, Richardson served as a member of the Vanderbilt Law Review and graduated Order of the Coif in 1992.

Upon graduation, Richardson moved to Grand Rapids, MI, working as an Associate at Warner, Norcross, & Judd, LLP.  In September 1993, Richardson moved to Atlanta to work as an Associate at Rogers & Hardin LLP.  After two years there, in 1995, Richardson moved into solo practice, founding Richardson & Associates in the Atlanta suburb of Conyers.

In 1998, Richardson left the practice of law, moving to Newark, NJ as a Special Agent in the Federal Bureau of Investigation (FBI).[1]  In that capacity, Richardson worked on public corruption and counter-terrorism.  In 2002, Richardson joined the U.S. Attorney’s Office in Newark as a federal prosecutor.

In 2004, Richardson moved to Nashville to be an Assistant U.S. Attorney in the Middle District of Tennessee.  He rose rapidly in the position, becoming Criminal Chief for the office in 2008.  Upon the election of President Barack Obama, Richardson left the U.S. Attorney’s Office and moved to the Department of Justice, moving to Belgrade, and working as a Resident Legal Advisor for Serbia, assisting Serbian judges, police, and prosecutors on rule of law issues.

In October 2010, Richardson moved back to Nashville to become a Member at Bass, Berry & Sims PLC.  While he has taken on additional roles over the years, including as an Adjunct Professor at Vanderbilt University, Richardson continues to serve as a Member as of his nomination to the federal bench.

History of the Seat

Richardson has been nominated for a vacancy on the U.S. District Court for the Middle District of Tennessee.  This vacancy opened on December 1, 2016, when Judge Todd Campbell retired from the bench.  Campbell, a former aide to Vice President Al Gore, was appointed to the federal bench at the relatively young age of 39, but retired at 60 due to an unnamed disability.[2]  As the vacancy came very late in the Obama Administration, no nominee was put forward to fill the vacancy.  Richardson was tapped by President Trump on  July 13, 2017, along with three other Tennessee nominees.[3]

Legal Experience

Richardson’s varied legal career can largely be broken down into three distinct periods for analysis: the first is from 1992-1998, where he worked in private practice.  The second is from 2002-2010, where Richardson worked as a federal prosecutor and DOJ attorney.  The final is from 2010-2017, where Richardson worked at Bass Berry in Nashville.

Richardson’s first job out of school was working as an associate at Warner, Norcross & Judd, LLP. in Grand Rapids. After moving to Rogers & Hardin in Atlanta, Richardson began to handle more complex commercial litigation matters.  For example, Richardson was part of the legal team representing S.N. Patel in his fight for control of Alpha Investment Properties, a motel operation company.[4]  After forming his own practice, Richardson represented telemarketer Alfred Estfan in his unsuccessful defense against charges of violating the Federal Trade Commission Act.[5]  Richardson also defended Sunrise Carpet Industries against an action for excess premiums from its insurance company.[6]

As an AUSA in Newark, Richardson worked on many criminal matters, but emphasized terrorism-related cases.  After moving to Nashville, Richardson shifted focus to white collar crimes.  For example, Richardson helped prosecute Albert Ganier, the founder of Education Networks of America (ENA) for obstruction of justice and destruction of evidence.[7]  Richardson also prosecuted violent crimes[8] and firearm cases.[9]  In 2009, Richardson moved to the Department of Justice, serving as a legal advisor in Belgrade to Serbian lawyers, judges, and law enforcement.[10]

After returning to Nashville, Richardson joined the Compliance and Government Investigations practice group at Bass, Berry & Sims.  In that role, Richardson successfully defended Charles Wells, a cigarette supplier, against charges relating to the Racketeer Influenced and Corrupt Organizations Act (RICO).[11]  Richardson also represented David Miller in charges that he had made a false statement to a bank.[12]

Scholarship

Despite not being an academic, Richardson has written extensively on issues of criminal law, trial practice and attorney ethics.  Here are some themes from Richardson’s writings.

Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment protects Americans against multiple punishments for the same offense.  For much of the 20th Century, double jeopardy was analyzed under the test set out by the Supreme Court in Blockburger v. United States.  In Blockburger, the Supreme Court held that a single act or transaction could violate multiple statutory provisions without implicating double jeopardy, as long as each separate offense required the proof of a different element.[13]  In 1990, the Supreme Court abrogated the Blockburger test in Grady v. Corbin, which held that the government could not prosecute an individual for an offense if an essential element of the crime charged constitutes an offense already prosecuted.[14]  Three years after Grady was decided, it was overruled by United States v. Dixon, which reimposed the Blockburger test.[15]

In 1992, between Grady and Dixon, Richardson published his law review note as a student, analyzing Grady and Blockburger.[16]  In the note, Richardson argues that Blockburger both underprotects and overprotects defendants.[17]  As such, Richardson argues that Grady should provoke a reform of Blockburger and a move away from its standard.[18]

In 1994, after the decision in Dixon, Richardson published an additional article criticizing the decision.[19]  Specifically, Richardson criticizes the Court for moving away from a “same offense” standard on double jeopardy:

“Simply put, the muddled state of double jeopardy jurisprudence is cause largely by the Supreme Court’s abandonment of what should be the anchor of the Court’s double jeopardy analysis: a requirement of same offenses.”[20]

Despite his criticism of Dixon, Richardson does not only argue that the Court is shortchanging criminal defendants.  Rather, he also argues that the Blockburger test confuses the difference between successive prosecutions and multiple punishments, and that, under the Double Jeopardy Clause, the former should be restricted more than the latter.[21]

Attorney Ethics

As a young lawyer in 1994, Richardson authored an article on the ethical obligations of attorneys.[22]  The article advocates a reform of the federal rules of attorney ethics, arguing that the current rules are cumbersome and that “lawyers cannot possibly determine what the applicable rules are, let alone determine whether or not they are in compliance.”[23]

In a more recent article co-authored with former federal judge Robert Echols, Richardson outlines best practices for white collar defense attorneys.[24]  Among other practice tips, Richardson urges defense attorneys not to lob ad hominem attacks against prosecutors.  Specifically, Richardson urges defense counsel to make charges of misconduct “where well-grounded and in the client’s best-interest”[25] but notes that unfair attacks may “be an uphill battle that ultimately damages counsel’s credibility.”[26]

Political Activity

Richardson does not have a particularly active political donation history.  His only contributions of record are two contributions, totalling $300 to the congressional campaign of Grant Starrett, a Republican who was challenging Rep. Scott DesJarlais in the Republican primary.[27]  The contributions were made months before Starrett’s campaign faced criticism over Islamophobic campaigning.[28]

Overall Assessment

For the most part, Trump’s district court nominees have not attracted much controversy.  As he has not represented any controversial clients, or taken any divisive stances, and as his legal writings are fairly anodyne, Richardson is unlikely to be any different.  If confirmed, Richardson will likely add another moderate conservative voice to the Tennessee federal bench.

[1] Eli J. Richardson, Linkedin Profile, https://www.linkedin.com/in/elirichardsonlawyer/ (last visited Sept. 14, 2017).

[2] Stacey Barchenger, Federal Judge to Retire From Bench in Nashville, Tennessean, Nov. 15, 2016, http://www.tennessean.com/story/news/2016/11/15/federal-judge-retire-bench-nashville/93932624/.

[3] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (on file at www.whitehouse.gov) (July 13, 2017).

[4] See Patel, et al. v. Alpha Investment Properties, Inc., et al., 458 S.E.2d 476 (Ga. 1995).

[5] Fed. Trade Comm’n v. Gem Merchandising Corp., 87 F.3d 466 (11th Cir. 1996).

[6] Home Ins. Inc. v. Sunrise Carpet Indus. Inc., 493 S.E.2d 641 (Ga. App. 1997).

[7] See United States v. Ganier, 468 F.3d 920 (6th Cir. 2006).

[8] See United States v. Jones, 2007 U.S. Dist. LEXIS 50030 (M.D. Tenn. July 10, 2007).

[9] See United States v. Hamblen, 239 Fed. Appx. 130 (6th Cir. 2007).

[10] Tennessee Bar Journal, Article: You Need to Know: People, 45 Tenn. B.J. 9 (March 2009).

[11] City of New York v. Chavez, et al., 944 F. Supp. 2d 260 (S.D.N.Y. 2013) (granting Wells’ motion for summary judgment on RICO claims).

[12] United States v. Miller, 734 F.3d 530 (6th Cir. 2013).

[13] Blockburger v. United States, 284 U.S. 299 (1932).

[14] Grady v. Corbin, 495 U.S. 508 (1990).

[15] United States v. Dixon, 509 U.S. 688 (1993).

[16] Eli J. Richardson, Matching Tests for Double Jeopardy Violations with Constitutional Interests, 45 Vand. L. Rev. 273 (Jan. 1992).

[17] Id. at 306 (noting that Blockburger underprotects defendants in successive prosecutions, but overprotects them in multiple punishments).

[18] Id. at 307.

[19] Eli J. Richardson, Eliminating Double-Talk From the Law of Double-Jeopardy, 22 Fla. St. U.L. Rev. 119 (Summer 1994).

[20] Id. at 143.

[21] See id. at 149.

[22] Eli J. Richardson, Demystifying the Federal Law of Attorney Ethics, 29 Ga. L. Rev. 137 (Fall 1994).

[23] Id. at 140.

[24] Robert L. Echols and Eli J. Richardson, White-Collar Defense, 47 Tenn. B.J. 14 (Dec. 2011).

[25] Id. at 19.

[26] Id.

[27] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=eli+richardson (last visited Sept. 14).

[28] Scott Broden, Grant Starrett Mailer Attacking DesJarlais Also Offends Muslims, Daily News Journal, July 20, 2016, http://www.dnj.com/story/news/2016/07/20/mailer-attacking-desjarlais-also-offends-muslims/87264290/.

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Judge William Ray II – Nominee to the U.S. District Court for the Northern District of Georgia

Federal judges are often called upon to interpret laws and legislative history, and bring meaning to legislative ambiguities. So, it can be argued that the system benefits from judges with legislative experience.  As such, Judge William Ray, who has served as a legislator, a trial judge, and an appellate judge, brings a diverse set of experiences to the bench.

Background

William McCrary Ray II was born in Macon, GA in 1963 to a family of active Democrats (Ray’s uncle was U.S. Rep. Richard Ray).[1]  Ray’s father, a farmer, was tragically murdered in a dispute with neighbors when Ray was 13.[2]  Ray went on to the University of Georgia, graduating in 1985 with a Bachelor of Business degree, and obtaining a Masters in Business the next year.  Ray continued on to UGA Law School graduating cum laude in 1990.

After graduating, Ray joined the Lawrenceville law firm Andersen, Davidson & Tate as an Associate working in civil litigation and family law.  In 1995, he became a partner at the firm.

In 1996, Ray won election to the Georgia State Senate with 69% of the vote, representing the 48th Senate District.[3]  He served in the State Senate for six years, serving on the Judiciary, Special Judiciary, Rules, Appropriations, Natural Resources, and Transportation Committees.  During his tenure, Ray helped pass Heidi’s law, which tightened penalties for repeat DUI offenders.[4]  In an interview, Ray noted that his experience with tragedy from his father’s murder spurred a commitment to victim’s rights, and made him a “proponent of capital punishment.”[5]

In 2002, Ray was appointed by Democratic Governor Roy Barnes to serve on the Gwinnett County Superior Court.[6]  Ray served in that capacity until 2012, when Republican Governor Nathan Deal elevated Ray to the Georgia Court of Appeals.[7]  Ray currently serves as a judge on that court.

History of the Seat

The seat Ray has been nominated for opened on March 31, 2017, with Judge Harold Lloyd Murphy’s move to senior status.[8]  Ray was nominated for the vacancy on July 13, 2017.[9]

Jurisprudence – Trial Judge

Ray spent approximately ten years as a trial judge in Gwinnett County, and another five years as an appellate judge.  As a trial judge, Ray served as presiding judge of the Gwinnett County drug treatment court, a program he helped found that allows drug offenders to have their convictions stricken.[10]

In 2006, Ray was drawn into a controversy involving budget cutbacks for indigent representation.  In response to rapidly depleting funds, the Georgia public defender council cut payments to private attorneys in capital cases from $125 an hour to $95 an hour.[11]  In response, Ray ordered state officials into his courtroom and probed the state’s obligation to pay for indigent defense.[12]  Further, he ordered the chief of the public defender council to turn over payment information for another expensive death penalty case, directly conflicting with an order from Judge Hilton Fuller to keep that information secret.[13]  The controversy resulted in a temporary halt on all capital cases as the state funding system ran out of money.[14]

Among other cases, Ray presided over the initial motions in the trial of Lisa Ann Taylor, the “Mansion Madam” who allegedly ran a house of prostitution in an exclusive Atlanta community.[15]  He also presided over the guilty plea of basketball star Al-Farouq Aminu, who had shot a woman with a BB gun.[16]  Ray sentenced Aminu to three years of probation, allowing him to attend college while on probation.[17]

Jurisprudence – Court of Appeals

During his five years on the Georgia Court of Appeals, Ray has established a conservative record on criminal issues.  Notably, Ray has voted to affirm criminal convictions against both procedural[18] and substantive[19] challenges.  For example, on Fourth Amendment challenges, Ray has upheld denials of motions to suppress,[20] and reversed grants of motion to suppress based on police misconduct.[21]  In one case, the trial court found that officers did not have probable cause to conduct a blood test on a driver suspected of driving under the influence.  Ray wrote for a 4-3 majority in reversing the decision.[22]  In dissent, Judge M. Yvette Miller argued that the majority failed to apply the proper level of deference to factual findings made by the trial court.[23]

In another decision, Ray wrote for a 5-2 majority in holding that a warrant application to obtain images of child pornography was supported by probable cause.[24]  The Georgia Supreme Court unanimously reversed Ray’s decision in an opinion by Judge Harold Melton, finding that the affidavit supporting the warrant application was “rife with issues.”[25]

On civil matters, Ray’s record is more mixed.  While he has shown a willingness to rule against plaintiffs,[26] he has also, on occasion ruled in their favor.[27]  Overall, Ray’s civil record does not suggest an undue bias towards either party in civil matters.

Political Activity

As noted above, Ray served as a Republican State Senator in Georgia for six years.  His only contribution of record is from 1996, when he gave Republican Clinton M. Day $500.[28]

Overall Assessment

Ray is a judicial conservative.  As such, he is far from an ideal candidate for the federal bench, as far as Senate Democrats are concerned.  That being said, it is to be expected that a Republican Administration will nominate conservative judges.  While Ray’s record is conservative, there are no smoking guns in his record to rally opposition around.  As such, Ray should expect a relatively smooth confirmation process, and Northern Georgia residents should expect a conservative addition to the federal bench.

[1] Greg Land, Federal Bench Nominee William Ray Hailed for Fairness, ‘Farm Boy Work Ethic’, Daily Report, July 17, 2017, http://www.dailyreportonline.com/id=1202793213784/Federal-Bench-Nominee-William-Ray-Hailed-for-Fairness-FarmBoy-Work-Ethic?slreturn=20170809211213.

[2] Id.

[3] Lucy Soto, Special Section; Election ‘96: Georgia; Democrats Keep Control But GOP Gains, Atlanta Journal & Const., Nov. 6, 1996.

[4] See Land, supra n. 1.

[5] Doug Nurse, Legislator Spurred by Early Tragedy; Crime Victims Close to his Heart, Atlanta Journal & Const., Mar. 6, 1999.

[6] See Land, supra n. 1.

[7] Id.

[8] R. Robin McDonald, Approaching 90, Judge Harold Murphy to Take Senior Status, Daily Report, Jan. 6, 2017, http://www.dailyreportonline.com/id=1202776272180/Approaching-90-Judge-Harold-Murphy-To-Take-Senior-Status.

[9] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at www.whitehouse.gov/thepressoffice).

[10] George Chidi, Drug Offenders Get Second Chance, Atlanta Journal Const., Oct. 20, 2006.

[11] Bill Rankin, Lawyers for the Poor Get Pay Cut, Atlanta Journal Const., Dec. 2, 2006.

[12] George Chidi, Tight Budget Hits Capital Trials, Atlanta Journal Const., Dec. 6, 2006.

[13] Rhonda Cook, Nichols Case Stirs Judicial Standoff; One Judge Wants Financial Records that Another Sealed, Atlanta Journal Const., Feb. 27, 2007.

[14] Scott Freeman, Brian Nichols and Georgia’s Indigent Defense Crisis, Creative Loafing, Feb. 27, 2008, http://www.creativeloafing.com/news/article/13026778/brian-nichols-and-georgias-indigent-defense-crisis.

[15] George Chidi, Sex Advice from ‘Mansion Madam’, Atlanta Journal Const., Aug. 14, 2007.

[16] Curtis Bunn, Hoops Star to Plead Guilty; Aminu Likely to Receive Probation, Atlanta Journal Const., Aug. 7, 2008.

[17] Andria Simmons, Ex-Norcross Star Can Attend College While on Probation, Atlanta Journal Const., Aug. 8, 2008.

[18] See, e.g., Jackson v. State, 782 S.E.2d 691 (Ga. App. 2016) (affirming denial of motion to suppress); State v. Fedrick, 763 S.E.2d 739 (Ga. App. 2014) (rev’ing grant of motion to suppress); Talton v. State, 749 S.E.2d 18 (Ga. App. 2013) (D knowingly waived right to jury trial).

[19] See, e.g., Fitzpatrick v. State, 793 S.E.2d 446 (Ga. App. 2016); Pippen v. State, 791 S.E.2d 795 (Ga. App. 2016); State v. Reid, 770 S.E.2d 665 (Ga. App. 2015) (rev’d grant of new trial); Harris v. State, 767 S.E.2d 747 (Ga. App. 2014).

[20] See Jackson v. State, 782 S.E.2d 691 (Ga. App. 2016); Shirley v. State, 765 S.E.2d 491 (Ga. App. 2014). But see Nichols v. State, 783 S.E.2d 918 (Ga. App. 2016) (rev’ing denial of motion to suppress).

[21] See State v. Wallace, 791 S.E.2d 187 (Ga. App. 2016); State v. Hasson, 778 S.E.2d 15 (Ga. App. 2015); State v. Fedrick, 763 S.E.2d 739 (Ga. App. 2014). But see State v. Camp, 782 S.E.2d 819 (Ga. App. 2016) (affirming grant of motion to suppress).

[22] State v. Hughes, 750 S.E.2d 789 (Ga. App. 2013).

[23] See id. at 793.

[24] Shirley v. State, 765 S.E.2d 491 (Ga. App. 2014).

[25] Shirley v. State, 777 S.E.2d 444, 446 (Ga. 2015).

[26] See, e.g., I.A. Group, Ltd. Co. et al. v. RmNandco, Inc., 784 S.E.2d 823 (Ga. App. 2016) (rev’g judgment to plaintiff); Moore-Waters et al. v. Met-Test, LLC., 782 S.E.2d 848 (Ga. App. 2016) (rev’ing grant of default judgment to plaintiff); Martin et al. v. Hansen, 755 S.E.2d 892 (Ga. App. 2014) (rev’ing denial of summary judgment to defendant); Askew et al. v. Rogers, 755 S.E.2d 836 (Ga. App. 2014) (rev’ing grant of summary judgment to plaintiff); Security Real Estate Servs. Inc. v. First Bank of Dalton, 752 S.E.2d 127 (Ga. App. 2013) (rev’ing denial of summary judgment to defendant).

[27] See, e.g., Teston et al. v. Southcore Constr. Inc., 783 S.E.2d 921 (Ga. App. 2016) (rev’ing grant of default judgment to defendant); Gomez v. Innocent et al., 746 S.E.2d 645 (Ga. App. 2013) (rev’ing grant of summary judgment to defendant); Deberry v. Johnson et al., 747 S.E.2d 886 (Ga. App. 2013) (rev’ing grant of summary judgment to defendant).

[28] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=william+ray&cycle=&state=GA&zip=&employ=&cand= (last visited Sept. 10, 2017).  

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Donald Coggins – Nominee to the U.S. District Court for the District of South Carolina

The J. Waites Waring Judicial Center in Charleston, SC

When the 114th Congress adjourned, it left 59 Obama nominees unconfirmed.  Among his first batch of District Court nominees on May 8, 2017, President Trump renominated two names from that group: David Nye, and Scott Palk.  On August 3, 2017, Trump renominated a third: Donald C. Coggins Jr.

Background

Donald Cecil Coggins Jr. was born on July 17, 1959 in Spartanburg, SC.  Coggins attended Clemson University, graduating with a Bachelor of Arts degree in 1981.  He went on to the University of South Carolina School of Law, graduating in 1984.

After graduating, Coggins returned to Spartanburg, joining Cummings and Smith as an associate.  Two years later, Coggins was made partner in the firm, which was renamed Cummings, Smith and Coggins.

In 1993, Coggins became a partner in Smith and Coggins, Attorneys at Law.  After six years, Coggins founded the firm Harrison, White, Smith & Coggins, P.C. as a Shareholder.  He became the Managing Shareholder at the firm in 2010, and served in that capacity until 2013.  Coggins currently continues as a Shareholder there.

History of the Seat

Coggins has been nominated for a vacancy on the U.S. District Court for the District of South Carolina.  This seat was opened by Judge Joseph Fletcher Anderson’s move to senior status on November 16, 2014.  Coggins’ name was first floated for this vacancy in early 2015, when news broke that Sen. Lindsey Graham (R-SC) was urging the Obama Administration to nominate Coggins.[1]  Obama ultimately nominated Coggins and South Carolina Supreme Court Justice Donald Beatty to fill two vacancies on February 25, 2016.[2]

While Beatty did not get the support of Graham or Sen. Tim Scott (R-SC), Coggins did.[3]  Coggins received a hearing before the Senate Judiciary Committee on June 21, 2016, and was approved without objection on July 14.  However, Coggins’ nomination stalled on the floor due to the blockade on confirmations imposed by Senate Majority Leader Mitch McConnell.  Without floor action, it was returned unconfirmed on January 3, 2017.

Coggins was renominated on August 3, 2017 by President Trump, with the support of Graham and Scott.[4]

Legal Experience

Coggins has spent virtually his entire legal career in Spartanburg, practicing a primarily civil litigation practice focused on representing plaintiffs in personal injury, product liability, and professional negligence cases.  In these fields, Coggins has secured large awards for his clients.  In 2001, Coggins secured a $1.35 million verdict in a Family and Medical Leave Act case, a record at the time.[5]

In 2007, Coggins was hired by South Carolina Attorney General Henry McMaster (now the Governor) to represent the State in an Unfair Trade Practices Act case against a pharmaceutical company.[6]  After a two week trial, Coggins helped secure a landmark $327 million award,[7] although it was reduced to $124 million by the South Carolina Supreme Court.[8]

Additionally, in 2014, Coggins helped secure the largest medical malpractice award ever obtained in Upstate South Carolina.[9]  The $2 million verdict was the result of the doctor’s failure to adequately diagnose and treat the patient’s mesenteric ischemia (a medical condition in which the small intestine fails to get sufficient blood flow).[10]

In addition to his work as a litigator, Coggins also serves as a member of the South Carolina Commission on Lawyer Conduct.  In this capacity, Coggins has overseen formal charges of misconduct against South Carolina attorneys, including making recommendations to the South Carolina Supreme Court.

Political Activity

Coggins has a history of supporting candidates of both political parties, making his own political leanings hard to discern.  On one side, Coggins’ firm is Republican-leaning, and his candidacy was championed by Graham, a Republican.[11]  Additionally, Coggins has frequently supported Graham, including donating almost $15000.[12]  Coggins has also supported other Republicans, donating $5100 to Scott, $3000 to former Governor David Beasley, and $3200 to Rep. Trey Gowdy.[13]

On the other hand, Coggins has been a strong supporter of President Obama, volunteering on his behalf in the 2008 primary, and donating almost $7500 to his campaigns.[14]  Coggins has also donated to other Democrats, including Rep. Jim Clyburn, senate candidates Inez Tenenbaum and Vic Rawl, and house candidate Preston Brittain.[15]  Coggins also donated $1000 to the Democratic National Committee in 2008.[16]

Overall Assessment

Coggins is the first Trump nominee whose legal career has primarily been as a plaintiff’s attorney.  Coggins’ experience handling complex cases with large verdicts and complicated settlements will serve him well as a federal trial judge.  Furthermore, Coggins will benefit from his bipartisan history of support.  Given his nomination by Presidents Obama and Trump, as well as his support from Republicans, including Graham and Scott, and Democrats, including Rep. Jim Clyburn, Coggins should sail through the confirmation process.

[1] John Monk, Three Candidates Emerging for Two S.C. Federal Judgeships, The Herald, Jan. 2, 2015, http://www.heraldonline.com/news/local/article12319307.html.

[2] Press Release, White House, President Obama Nominates Two to Serve on the United States District Court (February 25, 2016) (on file at https://obamawhitehouse.archives.gov).  

[3] John Monk, Beatty’s Nomination to be a SC Federal Judge is Stalled, The Herald, July 24, 2016, http://www.heraldonline.com/news/local/article91640322.html.  

[4] Press Release, Sen. Lindsey Graham, Joint Statement from Senators Lindsey Graham and Tim Scott on Judicial Nominations (August 4, 2017) (on file at www.lgraham.senate.gov).

[5] Bellsey v. Betras Plastics, Inc. and Betras, No. 7:00-3882-13 (D.S.C. 2001) (Judge G. Ross Anderson).

[6] See Perry, et al. v. Wyeth-Ayerst Laboratories Co., et al., No. 99-0089, Circuit Court of Jefferson County (Miss.) (Judge Pickard), Vadino, et al. v. American Home Products Corp., et al., No. MID-L-425-98, Superior Court, Middlesex County (N.J.) (Judge Corodemus).

[7] South Carolina ex rel. Wilson v. Ortho-McNeil-Janssen Pharms., Inc., No. 07-CP-42-1438, 2011 WL 2185861 (S.C. Com. Pl. June 3, 2011).

[8] State v. Ortho-McNeil-Janssen Pharms., Inc., 777 S.E.2d 176 (S.C. 2015), cert. denied, 136 S. Ct. 824 (2016).

[9] Easler v. Spartanburg Reg. Health Serv. Dist. Inc., No. 2011-CP-42-2840 (Spartanburg Cty. Ct. Com. Pl. 2015).

[10] See id.

[11] See Monk, supra n. 1.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

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“Chip” Campbell – Nominee to the U.S. District Court for the Middle District of Tennessee

As federal judges are often selected by home state senators, and senators tend to choose nominees they have a connection to, partners of the same law firm are occasionally nominated to the same court.  In 2013, for example, two partners at the California law firm, Munger, Tolles & Olson, were chosen to fill vacancies on the Ninth Circuit.  However, it is more unusual for two partners to be simultaneously nominated for judgeships in different states.  The midwestern law firm Frost, Brown, & Todd LLC. achieved this when Nashville partner William L. “Chip” Campbell was tapped for a judgeship a month after Lexington partner Claria Horn Boom.

Background

William Lynn Campbell, Jr., professionally known as Chip, was born in 1969 in Nashville, TN.  After getting a Bachelor of Science from the United States Naval Academy in 1991, Campbell joined the United States Marine Corps, serving for seven years.  In 1998, Campbell left the Marine Corps to attend the University of Alabama Law School.  Campbell served as Editor-in-Chief of the Alabama Law Review and graduated magna cum laude in 2001.

After graduating, Campbell joined the Birmingham office of Maynard, Cooper, & Gale, P.C.  In 2003, Campbell left Maynard, moving to Nashville, and joining Riley, Warnock, & Jacobsen, PLC. as an associate.  Campbell became a member at Riley Warnock in 2010.[1]

In 2011, Campbell moved to the Nashville Office of Frost, Brown, & Todd LLC. as a partner.  He currently practices in the firm’s business litigation practice.  He was nominated for a seat on the federal bench on July 13, 2017.

History of the Seat

Campbell has been nominated to fill a vacancy on the U.S. District Court for the Middle District of Tennessee.  This vacancy opened on April 15, 2017, when Judge Kevin Sharp left the bench.  Sharp, an Obama appointee, was only 54, but resigned his judgeship based on his dissatisfaction with mandatory minimum sentencing laws, arguing that he could not continue to impose unjust sentences.[2]

For his part, Campbell expressed his interest in a district court appointment in November 2016, shortly after the election of President Trump.  From November 2016 to March 2017, Campbell communicated with the staff of Sens. Lamar Alexander and Bob Corker.  Campbell met with the White House Counsel’s Office on March 28, 2017.  His nomination was officially submitted to the Senate on July 13, 2017.[3]

Legal Experience

Campbell began his legal career in Alabama, litigating labor, tort, and employment cases.  Notably, Campbell was on the legal team defending a coal company against tort claims filed by the widow of a worker killed in a mining accident.[4]

After moving to Nashville to work at Riley Warnock, Campbell changed his focus to business litigation, representing corporations in contract, tort, intellectual property, and regulatory actions. He served as associate counsel in a copyright infringement suit against a karaoke company.[5]  He also successfully defended a check verification company against a Fair Credit Reporting Act lawsuit.[6]

In 2011, Campbell moved to Frost Brown Todd as a partner.  In that capacity, Campbell handled class actions, antitrust, and fraud claims. He also represented the City of Chattanooga in a lawsuit challenging the city’s telecommunications regulations.[7]

Scholarship

Since his student days, Campbell has analyzed statutes, policy and jurisprudence in scholarly articles.  As a law student at the University of Alabama, Campbell published a student note titled “Moving Against the Tide: An Analysis of Home School Regulation in Alabama.”[8]  In the note, Campbell analyzed the regulation of homeschooling through the lens of constitutional rights.  Specifically, Campbell concluded that, under Supreme Court, there is no fundamental constitutional right to an education, although the Supreme Court has recognized a parent’s fundamental right to direct their child’s education.[9]  Campbell went on to criticize Alabama’s disparate treatment of homeschooling depending on whether the home school program is affiliated with a church or not.[10]  He recommended that the state relax its certification standards for home school teachers, instead focusing on educational outcomes through student testing.[11]

As a young lawyer at Maynard, Campbell authored an article explaining Alabama statutes governing co-employee liability for workplace injuries.[12]  In the article, Campbell explained that Alabama treats co-employee liability extremely narrowly and that “co-employee claims are generally difficult for plaintiffs to win.”[13]

One unusual topic of Campbell’s more recent writings is drones.  Specifically, Campbell has written extensively on the potential use and regulation of commercial drones.[14]  In these articles, Campbell generally argues for the greater use of drones, noting their potential for medical and police uses.[15]  Campbell also dismisses privacy concerns raised due to the extensive use of drones, noting that there is no “reasonable expectation of privacy in areas that are visible from the air.”[16]

Campbell also maintains a Twitter account.  This account generally focuses on articles and commentary on drone usage and regulations.

Overall Assessment

Generally, district court nominees don’t draw opposition unless they have a history of activism, a controversial paper trail, or serious ethical issues.  Campbell has none of these.  His apolitical background and lack of a judicial paper trail should keep most critics off his back.  Campbell may draw some criticism for his writings on drone technology, but such criticism is unlikely to overcome his strong academic credentials and balanced legal experience.  Even the American Bar Association agrees, rating Campbell “Well Qualified” for a federal judgeship.

[1] The Alabama Lawyer, Department: About Members, Among Firms, 71 Ala. Law. 251 (May 2010).

[2] Stacey Barchender, Why Federal Judge Kevin Sharp Left the Bench in Nashville, Tennessean, Apr. 17, 2017, http://www.tennessean.com/story/news/2017/04/17/why-federal-judge-kevin-sharp-left-bench-nashville/100419782/.  

[3] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (on file at www.whitehouse.gov) (July 13, 2017).

[4] Ex Parte Walter Indus. Inc., 879 So.2d 547 (Ala. 2003).

[5] Zomba Enterprises, Inc. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007).

[6] Holmes v. TeleCheck Intern. Inc., No. 3:05-0633 (M.D. Tenn.) (Judge Campbell).

[7] Zayo Group LLC. v. The City of Chattanooga, No. 1:16-cv-00466 (E.D. Tenn.) (Judge Reeves).

[8] William L. Campbell, Jr., Moving Against the Tide: An Analysis of Home School Regulation in Alabama, 52 Ala. L. Rev. 649 (Winter 2001).

[9] See id. at 652-54.

[10] See id. at 658-59.

[11] Id. at 672.

[12] William L. Campbell Jr., Kevin W. Patton, Alabama Code § 25-5-11: A Narrow Cause of Action Against Co-Employees, 64 Ala. Law. 38 (January 2003).  

[13] Id. at 47-48.

[14] See, e.g., Chip Campbell, What is All the Buzz About Drones, Linkedin Pulse, Jan. 29, 2016, https://www.linkedin.com/pulse/what-all-buzz-drones-chip-campbell?trk=mp-reader-card.

[15] See Chip Campbell, Where Can Drones Do Some Good (And Gain Community Acceptance)?, Linkedin Pulse, Feb. 16, 2016, https://www.linkedin.com/pulse/where-can-drones-do-some-good-gain-community-chip-campbell?trk=mp-reader-card.

[16] Chip Campbell, Does Drone Technology Present New Threats to Privacy, Linkedin Pulse, March 17, 2016, https://www.linkedin.com/pulse/does-drone-technology-present-new-threats-privacy-chip-campbell?trk=prof-post.

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Tommy Parker – Nominee to the U.S. District Court for the Western District of Tennessee

Thomas Lee Robinson Parker, professionally known as “Tommy”, is a prominent Memphis attorney, having served as the president of the Memphis Bar Association.  With a varied legal background including substantive litigation experience, Parker should face little trouble being confirmed quickly.

Background

Tommy Parker received a Bachelor of Science degree from the University of South Carolina in 1985 and went onto earn his J.D. from Vanderbilt University Law School in 1989.  After graduating, Parker joined the Memphis law firm, Waring Cox PLC. as an associate, working in Tennessee state and federal court litigation.

In 1996, Parker was hired by U.S. Attorney Veronica F. Coleman to serve as a federal prosecutor.  As an Assistant U.S. Attorney for the Western District of Tennessee, Parker handled both trial and appellate criminal matters, including drug and white collar cases.

In 2005, Parker left the U.S. Attorney’s office to join the Memphis office of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. as a Shareholder.[1]  Parker currently serves in the same capacity.

History of the Seat

Parker has been nominated to a seat on the U.S. District Court for the Western District of Tennessee.  This seat opened on July 1, 2015, when Judge Samuel Mays moved to senior status.  Approximately six weeks before Mays moved to senior status, President Obama nominated Edward Stanton, the then-U.S. Attorney in the district, to fill the judgeship.[2]  Stanton, who had the strong support of Republican Tennessee Senators Lamar Alexander and Bob Corker,[3] received a hearing on September 30, 2015, with the Committee unanimously approving his nomination on October 29.  However, despite there being no objections to his nomination, Stanton was blocked from a floor vote by Senate Majority Leader Mitch McConnell,[4] ultimately being returned unconfirmed at the end of the 114th Congress.

President Trump declined to renominate Stanton for the seat, instead nominating Parker on July 13, 2017.

Legal Experience

Parker began his legal career as a litigation associate at Waring Cox, PLC., representing corporations in tort claims.  Early in his career, Parker was part of the legal team defending a fire equipment company and its salesman against tort claims brought by a fireman injured by the equipment.[5]  Parker also defended stair manufacturers against claims by a worker injured by falling off their equipment, unsuccessfully arguing before the Tennessee Supreme Court that his clients should be able to plead the contributory negligence of the plaintiff’s employer as an affirmative defense.[6]

In 1996, Parker became a federal prosecutor.  In this capacity, Parker represented the federal government in criminal proceedings, including responding to motions to suppress,[7] and defending government intent to seek the death penalty.[8]  Parker also had the opportunity to represent the government in appeals before the U.S. Court of Appeals for the Sixth Circuit.[9]  For example, Parker successfully argued that cops did not exceed the scope of a traffic scope in searching a vehicle.[10]

In 2005, Parker left prosecution to flip to the other side, working as a criminal defense attorney in white collar criminal cases.  Parker also represented corporations in defending against government investigations,[11] and RICO claims.[12]  Parker has also taken on some cases representing plaintiffs.  For example, in one case, Parker represented the heirs of a decedent beaten to death by the Memphis police.[13]

Political Activity

Parker has been active in the local Republican Party, serving on the Steering Committee of the Republican Party of Shelby County from 2009-2014, and serving as the Party’s counsel during the 2016 election.  Parker has also been a generous donor to Tennessee Republicans, donating $2000 to Alexander, $1750 to Corker, and $1800 to Rep. David Kustoff (R-TN).[14]  Parker has also contributed to national Republicans, giving to the presidential campaigns of Mitt Romney and John Kasich, as well as to the Republican National Committee.[15]

Overall Assessment

There is no such thing as a “sure thing” when it comes to judicial nominations.  After all, in a universe where well-credentialed, moderate nominees were swiftly approved, this vacancy would have been filled two years ago with the confirmation of Edward Stanton.  Nevertheless, Parker’s strong legal experience, connections in the Memphis legal community, and mainstream politics makes him a likely candidate for the federal bench.

With his confirmation, Tennessee litigants can expect the addition of another moderate-conservative to the Western District bench.

[1] The Bulletin Board, Department: News About TBA Members, 41 Tenn. B.J. 10, 11 (February 2005).

[2] Press Release, White House, President Obama Nominates Edward L. Stanton III to Serve on the United States District Court for the Western District of Tennessee (May 21, 2015) (on file at https://obamawhitehouse.archives.gov).  

[3] The Leadership Conference, These Republican Senators Want Their Judicial Nominees Confirmed. Majority Leader McConnell Isn’t Listening, Medium, Aug. 4, 2016, https://medium.com/@civilrightsorg/these-republican-senators-want-their-judicial-nominees-confirmed-1d87e6bfc615.

[4] The Leadership Conference, Mitch McConnell Tried Skipping Over the Two Longest-Waiting Judicial Nominees. They’re Both Black Men, Medium, Sept. 9, 2016, https://medium.com/@civilrightsorg/mitch-mcconnell-tried-skipping-over-the-two-longest-waiting-judicial-nominees-208b6f7cdbb.  

[5] See Richmond v. Adelman, 1991 Tenn. App. LEXIS 572 (Tenn. App. July 24, 1991).

[6] Ridings v. The Ralph Parsons Co. et al., 914 S.W.2d 79 (Tenn. 1996).

[7] See, e.g., United States v. Ramirez, 115 F. Supp. 2d 918 (W.D. Tenn. 2000) (denying motion to suppress based on warrantless search of vehicle).  

[8] See, e.g., United States v. Haynes, 269 F. Supp. 2d 970 (W.D. Tenn. 2003) (denying motion to strike gov’t notice of intent to seek death penalty).

[9] See United States v. Brown, 276 F.3d 211 (6th Cir. 2002); United States v. Saucedo, 226 F.3d 782 (6th Cir. 2000); United States v. Wellman, 185 F.3d 651 (6th Cir. 1999); United States v. Gibson, 135 F.3d 1124 (6th Cir. 1998); United States v. Weaver, 126 F.3d 789 (6th Cir. 1997); United States v. Comer, 93 F.3d 1271 (6th Cir. 1996).

[10] See United States v. Villanueva, 89 Fed. Appx. 584 (6th Cir. 2004).

[11] See, e.g., United States v. UT Medical Group, Inc. et al., 2010 WL 11493930 (W.D. Tenn. Jan. 27, 2010).

[12] See, e.g., Duvall v. Ecoquest Intern., Inc., 2007 WL 2811052 (E.D. Mo. Sept. 24, 2007).

[13] Buckley v. City of Memphis, 2005 WL 6737964 (W.D. Tenn. Feb. 9, 2005).

[15] See id.

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Annemarie Carney Axon – Nominee to the U.S. District Court for the Northern District of Alabama

It is relatively unusual to have a federal judge share the bench with a former clerk.  However, upon her expected confirmation, Annemarie Carney Axon, a Birmingham based attorney, would join her former boss, Judge Inge Prytz Johnson, on the United States District Court for the Northern District of Alabama.

Background

Axon, born Annemarie M. Carney, attended the University of Alabama, graduating with a B.A. in History and Political Science in 1995.  She went on to the University of Alabama law school, graduating in 1999.  After graduating, Axon clerked for Judge Inge Prytz Johnson on the United States District Court for the Northern District of Alabama.

After her clerkship, Axon moved to Providence, RI to work as an associate at Edwards & Angell LLP.  Axon returned to Alabama in 2005 to join the Birmingham office of Wallace, Jordan, Ratliff & Brandt, LLC.  She currently serves as a partner there.

History of the Seat

Axon has been nominated for a seat on the U.S. District Court for the Northern District of Alabama.  This seat opened on May 8, 2015, when Judge Sharon Lovelace Blackburn moved to senior status.  Shortly after this seat opened, negotiations on a judicial nominations package between the Administration and Alabama’s Republican senators fell apart and no nomination was ever made to fill the seat.[1]  President Trump announced Axon’s nomination to the vacancy on July 13, 2017.

Legal Experience

Axon has spent nearly two decades litigating in state and federal courts.  Much of her career has been focused on representing banks and other financial institutions, defending them against contract claims,[2] and against SEC liability.[3]  For example, Axon successfully defended a bank serving as trustee for a Rhode Island mother and children against charges that the bank mismanaged the trust.[4]  While Axon’s work representing financial institutions is unlikely to raise many eyebrows, she may be asked about two more controversial cases.

In Providence, Axon defended the Palestinian Authority (PA) in a series of suits brought by American citizens killed by Hamas.[5]  Axon and her legal team at Edwards Angell argued that the suits brought against the PA were nonjusticiable, and the PA was protected by sovereign immunity.  After adverse rulings against them in the lower court,[6] the First Circuit ruled against the PA, and held that it did not constitute a “state” for sovereign immunity purposes.[7]

In Birmingham, Axon was part of the legal team defending then Governor Bob Riley’s appointments to the Alabama A&M Board of Trustees.[8]  The appointments were challenged by a group of alumni as violating the express interests of the Alabama Senate.[9]  However, the Alabama Supreme Court rejected Riley’s argument that the alumni lacked standing but found that the trial court lacked subject matter jurisdiction to hear the case, as such affirming Axon’s position.[10]

Political Activity

Axon does not have a history of donations to candidates of either political party.

Overall Assessment

In confirmation politics, nominees who don’t speak out on judicial and political issues generally attract less opposition.  As such, Axon’s focus on (less high profile) financial issues, and her non-involvement with politics speaks to her confirmability.

If critics attack Axon, it will likely be due to her defense of the Palestinian Authority.  Her involvement in the politically volatile case, and the ultimate rejection of her legal position by the First Circuit could be grounds for criticism.  Nevertheless, she and her supporters can argue that her zealous advocacy on behalf of her client should not be considered representative of her own legal views.

To sum up, Axon’s record suggests an easily confirmation and middle-of-the-road nominee.

[1] Compare Pema Levy, Jeff Sessions has a History of Blocking Black Judges, Mother Jones, Jan. 9, 2017, http://www.motherjones.com/politics/2017/01/jeff-sessions-blocked-black-judges-alabama/ with Mary Troyan, Judicial Vacancies in Alabama Pile Up, Montgomery Advertiser, April 22, 2015, http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/04/22/judicial-vacancies-alabama-pile/26166537/.  

[2] See, e.g., Tomaiolo v. Malinoff, 281 F.3d 1 (1st Cir. 2002) (representing Transamerica Corporation); Morris v. Highmark Life Ins. Co., 255 F.Supp.2d 204 (D. Mass. 2003).

[3] See, e.g., S.E.C. v. Slocum, Gordon & Co., 334 F. Supp. 2d 144, 149 (D.R.I. 2004).

[4] Rose v. Firststar Bank et al., 819 A.2d 1247 (R.I. 2003).

[5] The Estates of Ungar ex rel. Strachman v. The Palestinian Auth., 228 F. Supp. 2d 40 (D.R.I. 2002).

[6] Estates of Ungar v. Palestinian Auth., 315 F. Supp. 2d 164, 187 (D.R.I. 2004).

[7] Ungar v. Palestine Liberation Org., 402 F.3d 274, 276 (1st Cir. 2005).

[8] Riley v. Hughes, 17 So. 3d 643 (Ala. 2009).

[9] Id. at 645.

[10] Id. at 646.

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Thomas Alvin Farr – Nominee to the U.S. District Court for the Eastern District of North Carolina

In December 2006, Thomas Alvin Farr, a well-connected Republican attorney from Raleigh, was nominated for a vacancy on the U.S. District Court for the Eastern District of North Carolina.  For the next two years, Farr waited for a hearing and a vote, neither of which came in the Democratic-controlled Senate.  Then, with the election of President Obama, Farr’s hopes of a federal judgeship died.  On July 13, 2017, however, President Trump revived Farr’s nomination, submitting him once again to the seat he had originally been nominated for, a seat studiously kept open by North Carolina’s Republican Senators.

Background

Thomas Alvin Farr was born in Cincinnati, OH on October 24, 1954.[1]  Farr attended Hillsdale College, a Christian liberal arts school in Michigan, graduating summa cum laude in 1976.  Farr proceeded to Emory University, graduating with a J.D. in 1979.

After graduating, Farr joined the National Right to Work Legal Defense Foundation as a staff attorney.  In 1981, upon the election of Republican senator John P. East,[2] Farr moved to Washington D.C. to serve as Counsel for the Senate Labor and Human Resources Committee.  Farr left D.C. in 1982 to serve as a law clerk to Judge Frank Bullock of the U.S. District Court for the Middle District of North Carolina.

In 1983, Farr joined the Raleigh law firm Maupin, Taylor, Ellis & Adams, P.A., working on civil litigation, with a focus on labor law.  During this period, Farr also served as a member of the North Carolina Elections Board.

In 2003, Farr and three other partners left Maupin for Haynsworth, Baldwin, Johnson & Greaves, a Greenville, SC based labor and employment firm.[3]  In 2006, Farr joined the Raleigh office of Ogletree Deakins, where he currently works as a partner.

In December 2006, President George W. Bush nominated Farr for a vacancy on the U.S. District Court for the Eastern District of North Carolina.  Farr’s nomination came a month after Democrats took control of the U.S. Senate.  Incoming Chairman Patrick Leahy (D-VT) declined to process Farr’s nomination, despite moving and confirming three other North Carolina nominees.  Farr’s nomination was ultimately returned to the President unconfirmed.

History of the Seat

Farr has been nominated for the longest pending federal judicial vacancy.  This seat opened on December 31, 2005, when Judge Malcolm J. Howard moved to senior status.  After Farr’s unsuccessful nomination expired in 2008, President Barack Obama and newly elected Senator Kay Hagan (D-NC) did not renominate Farr.  Instead, in July 2009, Hagan submitted a list of three new candidates, Superior Court Judges Allen Cobb and Quentin Sumner, and federal prosecutor Jennifer May-Parker, to the Administration.[4]  Republican Senator Richard Burr (R-NC) submitted his own letter endorsing Cobb and May-Parker.[5]  However, despite the joint endorsements, Obama did not nominate a judge during his first term.

On June 20, 2013, Obama finally nominated May-Parker to fill the vacancy.[6]  However, Burr reversed his prior support for May-Parker, blocking her nomination by refusing to return a blue slip.[7]  Without Burr’s support, May-Parker did not receive a hearing, and her nomination died at the end of the 113th Congress.

On April 28, 2016, President Obama nominated Patricia Timmons-Goodson, a former justice on the North Carolina Supreme Court, to fill the vacancy.[8]  Timmons-Goodson’s nomination drew immediate opposition from Burr, who refused to support her.[9]  As a result, she was never confirmed.

On July 13, 2017, President Trump renominated Farr for the vacancy,[10] this time with the support of Burr and Senator Thom Tillis (R-NC).[11]

Legal Experience

Having been a lawyer since 1979, Farr has more experience litigating than any other nominee put forward by the Trump Administration.  The vast majority of his experience has been in the fields of labor and election law.

Labor Law

Farr has spent virtually his entire legal career in labor law, generally opposed to the positions of unions and unionized workers.  He started his legal career at the National Right to Work Legal Defense Foundation, litigating against unions and union-friendly regulation.  Furthermore, as Counsel for Sen. East, Farr worked on labor policy in the U.S. Senate.

In private practice, Farr fought claims by truck drivers seeking the rights of union membership,[12] and industrial workers seeking to take necessary measurements to file a grievance.[13]  Farr also successfully intervened in a suit blocking NLRB enforcement of its bargaining order against a pork product plant in North Carolina.[14]  He also filed suit to challenge an arbitration decision in favor of a unionized employee.[15]

Farr also filed a Supreme Court amicus brief on behalf of Helms urging affirmance of a decision holding that unions could not spend money on activities unrelated to collective bargaining.[16]

Election Law

In addition to his expertise in labor law, Farr is also known for his extensive litigation experience representing the Republican party, Republican elected officials, and conservative interests in election law litigation.[17]

Early in his career, Farr represented Sen. Jesse Helms (R-NC) and the North Carolina Republican Party in a suit challenging the constitutionality of North Carolina election laws.  The suit arose when Republican Congressman Bill Hendon lost a close election to Democrat James Clarke, and filed suit to challenge the election results, and the North Carolina straight-ticket statute.  After years of litigation, Judge David Sentelle (now on the U.S. Court of Appeals for the D.C. Circuit) found that the statute, which voided cross-over votes cast in opposition to a straight-ticket ballot, was unconstitutional, accepting Farr’s position.[18]

Following the 1990 census, Farr represented the Republican Party of North Carolina in its unsuccessful challenge against the state’s congressional map, alleging partisan gerrymandering.[19]  In 1995, Farr argued the case of Shaw v. Hunt before the U.S. Supreme Court.  The Supreme Court ended up siding with Farr on a 5-4 vote, striking down the congressional map as an unconstitutional racial gerrymander.[20]

In 2001, Farr and future U.S. District Judge James Dever once again challenged the maps drawn by North Carolina’s Democratic legislature, alleging that they were a partisan gerrymander.[21]

In contrast to his litigation against partisan gerrymandering by Democrats, Farr has defended gerrymandering by Republicans.  For example, Farr was a part of the legal team defending the North Carolina legislature’s gerrymandering of the Guilford County Board of Commissioners.[22]

Farr also defended the congressional map and state legislative maps drawn by the Republican legislature against charges that they were unconstitutional racial gerrymanders.[23]  He also defended “election reform” measures enacted by the legislature that, critics argued, would disenfranchise minority voters.[24]

Controversially, Farr’s firm was hired at taxpayer expense to defend North Carolina’s restrictive voter id law against suit by the Department of Justice, who argued that the law disenfranchised minority voters.[25]  In court, Farr argued that voter id was a “minor inconvenience” for voters.[26]  Ultimately, the appeals were dismissed by Democratic Governor Roy Cooper, and Farr was dismissed from the case.[27]

Other Representations

In addition to the cases mentioned above, Farr has defended business interests against civil rights and other actions in court.[28]  Early in his career, Farr successfully defended a railroad accused of promoting white candidates over an experienced black conductor.[29]  Farr also successfully defended American Safety Products, Inc. against breach of contract and RICO claims,[30] as well as defending Dow Corning Corp. against wrongful termination claims.[31]

Political Activity

As may be evident from his frequent appointments by the Republican legislature, Farr is well connected in the North Carolina Republican Party and has been a generous donor to Republicans.  Through his career, Farr has donated to Sen. Lauch Faircloth (R-NC), President George W. Bush, Sen. Elizabeth Dole (R-NC), Sen. Bob Smith (R-NH), Sen. Richard Burr (R-NC), Rep. Renee Ellmers (R-NC), Rep. George Holding (R-NC), Rep. Richard Hudson (R-NC), Mitt Romney, Newt Gingrich, Speaker Paul Ryan, Sen. Thom Tillis (R-NC), and Senate Majority Leader Mitch McConnell, among others.[32]  Farr has also been a strong supporter of President Trump, donating almost $2500 to Trump’s campaign, and an additional $1100 to the Make America Great Again PAC.[33]  While most of his donations are to Republicans, Farr did donate $1000 to Rep. Mike McIntyre (D-NC) in 2009.

Overall Assessment

Both Farr’s supporters and detractors will likely turn to one-word arguments for their position.  For Farr’s supporters, the word is “qualified.”  For his opponents, it’s “partisan.”

As noted, Farr has more experience practicing law than any other Trump nominee.  With almost forty years of legal experience, including work in government, nonprofits, and private practice, Farr is certainly well qualified for a federal judgeship.

However, Farr also has a deeply partisan history.  His switch from attacking partisan gerrymanders drawn by Democrats to defending partisan gerrymanders drawn by Republicans allows detractors to paint him as a partisan ideologue.  Furthermore, his dismissal of the burdens of voter id as a “minor inconvenience” is sure to draw opposition from civil rights groups.

As a bottom line, Democrats, civil rights plaintiffs, and labor unions will argue that, given Farr’s partisan past, he cannot be fair to them in court.  Unlike his first nomination, however, this time, Farr will get a hearing to defend himself and try and put those doubts to rest.

[2] East later gained notoreity as one of the principal opponents of a federal holiday honoring Rev. Martin Luther King, Jr.  Frances Romero, A Brief History of Martin Luther King Jr. Day, Time, Jan. 18, 2010, http://content.time.com/time/nation/article/0,8599,1872501,00.html.

[3] Kim Nilsen, Eillis [sic] Leaves Maupin Taylor & Ellis, Triangle Business Jrnl., Mar. 24, 2003, https://www.bizjournals.com/triangle/stories/2003/03/24/daily11.html.

[4] Hagan Looks to Split U.S. Attorney Job, WRAL.com, July 10, 2009, http://www.wral.com/news/local/politics/story/5547659/.

[5] Letter from Richard Burr, North Carolina Senior Senator, to Barack Obama, The President of the United States (July 21, 2009) (on file at http://big.assets.huffingtonpost.com/Burrletter.pdf).

[6] Press Release, White House, President Obama Announces Intent to Nominate Three to Serve on the United States District Court (June 20, 2013) (on file at https://obamawhitehouse.archives.gov).  

[7] Jennifer Bendery & Sam Stein, Richard Burr Blocks Judicial Nominee After Recommending Her to Obama, Huffington Post, Jan. 8, 2014, http://www.huffingtonpost.com/2014/01/08/richard-burr-judicial-nominee_n_4563083.html.

[8] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Courts (April 28, 2016) (on file at https://obamawhitehouse.archives.gov).  

[9] Anne Blythe, Burr Vows to Block Obama Nomination to NC Federal Court Seat, The News & Observer, April 28, 2016, http://www.newsobserver.com/news/politics-government/state-politics/article74534012.html.

[10] Press Release, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at www.whitehouse.gov/thepressoffice).

[11] Press Release, Burr and Tillis Welcome Nomination of Thomas Farr as District Judge for Eastern North Carolina (July 13, 2017) (on file at www.burr.senate.gov/press/releases).

[12] Joyner v. Abbott Labs., 674 F. Supp. 185, 188 (E.D.N.C. 1987).

[13] N.L.R.B. v. Am. Nat. Can Co., Foster-Forbes Glass Div., 924 F.2d 518, 520 (4th Cir. 1991).

[14] N.L.R.B. v. Lundy Packing Co., 68 F.3d 1577, 1579 (4th Cir. 1995), supplemented, 81 F.3d 25 (4th Cir. 1996).

[15] Bandag, Inc. v. Local 922, United Steel Workers of Am., No. 5:96-CV-450-BR3, 1996 WL 943527, at *1 (E.D.N.C. Dec. 20, 1996), aff’d sub nom. Bandag, Inc. v. Local 922, 121 F.3d 697 (4th Cir. 1997).

[16] Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 745, 108 S. Ct. 2641, 2648, 101 L. Ed. 2d 634 (1988).

[17] See, e.g. Wesley Brown, Hudson and Jackson Exchange Blows in Senate Race, The Free Press, Oct. 15, 2010 (noting that while representing Sen. Brent Jackson, Farr sent a cease-and-desist letter to his Democratic opponent, alleging untruths in his ads).

[18] Hendon v. N. Carolina State Bd. of Elections, 633 F. Supp. 454, 462 (W.D.N.C. 1986).

[19] Pope v. Blue, 809 F. Supp. 392, 394 (W.D.N.C.), aff’d, 506 U.S. 801, 113 S. Ct. 30, 121 L. Ed. 2d 3 (U.S. 1992).  See also Shaw v. Hunt, 861 F. Supp. 408, 417 (E.D.N.C. 1994), rev’d, 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (U.S. 1996).

[20] Shaw v. Hunt, 517 U.S. 899, 902, 116 S. Ct. 1894, 1899, 135 L. Ed. 2d 207 (U.S. 1996).

[21] Stephenson v. Bartlett, 180 F. Supp. 2d 779, 781 (E.D.N.C. 2001).

[22] NAACP-Greensboro Branch v. Guilford Cty. Bd. of Elections, 858 F. Supp. 2d 516 (M.D.N.C. 2012).

[23] Harris v. McCrory, 159 F. Supp. 3d 600, 604 (M.D.N.C. 2016), aff’d sub nom. Cooper v. Harris, 137 S. Ct. 1455, 197 L. Ed. 2d 837 (U.S. 2017). See also  Covington v. North Carolina, 316 F.R.D. 117, 124 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211, 198 L. Ed. 2d 655 (U.S. 2017).

[24] League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 230 (4th Cir. 2014).

[25] N. Carolina State Conference, of the NAACP v. McCrory, 156 F. Supp. 3d 683, 686 (M.D.N.C. 2016).

[26] Ken Otterbourg, Closing Arguments Given in Key Voter Rights Trial, N.Y. Times, Feb. 2, 2016.

[27] Taft Wireback, Law Firm Disputes Dismissal from NC Voter ID Case, Greensboro News & Record, Feb. 21, 2017, http://www.greensboro.com/news/government/law-firm-disputes-dismissal-from-nc-voter-id-case/article_fc41ca4c-139e-5faf-9232-a5785ca01aba.html.

[28] See, e.g., Dotson v. Pfizer, Inc., 558 F.3d 284, 290 (4th Cir. 2009); Rodger v. Elec. Data Sys. Corp., 160 F.R.D. 532, 535 (E.D.N.C. 1995); Mumford v. CSX Transp., 878 F. Supp. 827, 829 (M.D.N.C. 1994), aff’d sub nom. Mumford v. CSX Transp., Inc., 57 F.3d 1066 (4th Cir. 1995).

[29] Miller v. Seaboard Sys. R.R., No. C-85-1156-R, 1986 WL 15502, at *1 (M.D.N.C. Dec. 23, 1986).

[30] Grantham & Mann, Inc. v. Am. Safety Prod., Inc., 831 F.2d 596, 598 (6th Cir. 1987).

[31] Riley v. Dow Corning Corp., 876 F. Supp. 732, 733 (M.D.N.C. 1992), aff’d, 986 F.2d 1414 (4th Cir. 1993).

[32] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=Thomas+Farr (last visited Aug. 17, 2017).  

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Michael Lawrence Brown – Nominee to the U.S. District Court for the Northern District of Georgia

Third time’s the charm?  After two different Obama nominees were blocked from filling this Atlanta-based judgeship, the Trump Administration has put its hopes on a prominent white collar defense attorney: Michael Lawrence Brown.

Background

Brown has close ties to Atlanta, having grown up there and attended the Marist school, an independent Catholic prep school.[1]  After getting an B.A. from Georgetown University in 1991, Brown attended the University of Georgia Law School, graduating in the Top 10% in 1994.  Following his graduation, Brown clerked for Judge J.L. Edmondson on the United States Court of Appeals for the Eleventh Circuit.

After his clerkship, Brown joined the Atlanta office of King & Spalding, LLC., coinciding with another Trump judicial nominee, Claria Horn Boom.  Brown spent four years at the firm, leaving in 1999 to join the U.S. Attorney’s Office for the Southern District of Florida.

In 2002, Brown was hired by then-U.S. Attorney William Duffey to be a federal prosecutor in the Northern District of Georgia.  He served in this role until 2005, when he moved to the Atlanta office of Alston & Bird.  He currently serves as a partner and the co-leader of the firm’s Government & Internal Investigations Team.

History of the Seat

Brown has been nominated for a seat on the U.S. District Court for the Northern District of Georgia.  This seat was vacated on July 31, 2014, when Judge Julie Carnes was elevated to the U.S. Court of Appeals for the Eleventh Circuit.  Twice, President Obama attempted unsuccessfully to fill this seat.  His first nominee was then-Georgia Court of Appeals judge (and current Georgia Supreme Court Justice) Michael Boggs.[2]  Boggs, a conservative Democrat, was part of a six judge package negotiated between the White House and Georgia’s Republican senators.  Unfortunately, while Boggs received a hearing with the other nominees from the package, he faced strong opposition from progressive groups, who objected to stances he had taken as a state senator.[3]  Ultimately, the Senate Judiciary Committee did not process Boggs’ nomination, and the White House abandoned the nomination.[4]

Facing a Republican-controlled Judiciary Committee, Obama nominated Judge Dax Eric Lopez of the State Court of Dekalb County on July 30, 2015.[5]  However, Lopez, a Latino Republican, drew sharp opposition from some Georgia conservatives for his participation in the Georgia Association of Latino Elected Officials, a nonpartisan civic organization.[6]  Ultimately, Lopez’s nomination was blocked by Sen. David Perdue (R-GA), who declined to return his blue slip.[7]

President Trump declined to renominate Lopez, instead nominating Brown on July 13, 2017.

Legal Experience

Brown began his legal career as a clerk for Judge J.L. Edmondson on the U.S. Court of Appeals for the Eleventh Circuit.  He followed this up by joining the Atlanta office of King & Spalding as an associate.  During his time there, Brown was part of a legal team representing a holding company in a legal malpractice action against its former attorneys.[8]  Brown also defended a furniture manufacturer against antitrust liability,[9] and served as court appointed counsel in a Bivens action against federal agents.[10]

In 1999, Brown moved to Florida to serve as an Assistant United States Attorney (AUSA).  In 2002, he moved back to Atlanta to work as an AUSA in the Northern District of Georgia.  In this role, he was part of the legal team prosecuting Baltimore Ravens running back Jamal Lewis for drug charges in 2004.[11]  This case also drew criticism for Brown, as U.S. District Judge Orinda Evans found the charges “weak.”[12]  The felony charges were ultimately plead down to a single charge of using a cellphone to help facilitate a drug deal.[13]

In 2004, Brown moved to the Atlanta office of Alston & Bird, where he currently serves.  In that role, Brown developed a reputation for the vigorous defense of defendants accused of white-collar and corruption crimes.[14]  Notably, Brown represented Crawford Lewis, a former DeKalb County School Superintendent charged with public corruption and racketeering.[15]  Brown helped secure a probationary sentence for Lewis, who was facing up to 65 years in jail, in exchange for testimony against his co-defendants.[16]  When Judge Cynthia Becker, who was unimpressed with the deal, sentenced Lewis to prison anyway, Brown “flooded Becker’s office with calls and emails asking for bond.”[17]  The Georgia Court of Appeals eventually granted the bond request and Becker was struck from the bench for her conduct in the case.

Brown also represented Tyler Peters, a bond trader who was ultimately acquited of conspiracy, securities fraud and wire fraud charges.[18]  Brown has also handled antitrust matters including representing automobile safety manufacturer Autoliv Inc.

Political Activity

Brown has been fairly active as a political donor, having contributed to former Republican Senator Saxby Chambliss and current Senator David Perdue.[19]  In 2012, Brown contributed a total of $3600 to Mitt Romney’s presidential candidacy.  More recently, Brown contributed $1000 to the Right to Rise PAC, which supported the presidential campaign of former Florida Governor Jeb Bush.  While most of Brown’s contributions have been to Republicans, his most recent contribution was $250 to California Senator Kamala Harris.

In 2012, Brown was one of two non-jurists to be included on Gov. Nathan Deal’s list of finalists for a Georgia Supreme Court vacancy.  Deal ultimately chose Georgia Court of Appeals judge Keith Blackwell.

Overall Assessment

As an appellate clerk, a former federal prosecutor, and a law firm partner, Brown is well-qualified to serve as a federal judge.  Having served as a prosecutor and a defense attorney, Brown has the experience to gauge both sides of a criminal case.  At any rate, Brown lacks the baggage that brought down both the Boggs and Lopez nominations.  As such, as a candidate who supported both David Perdue and Kamala Harris, Brown will likely be confirmed comfortably.

[1] R. Robin McDonald, Alston & Bird Partner Brown’s Path to the Georgia Federal Court Bench, Daily Report, July 18, 2017, http://www.dailyreportonline.com/id=1202793307311/Alston-amp-Bird-Partner-Browns-Path-to-the-Georgia-Federal-Court-Bench?slreturn=20170709231611.

[2] Press Release, White House, President Obama Nominates Eight to Serve on the United States District Courts (Dec. 19, 2013) (on file at https://obamawhitehouse.archives.gov).  

[3] See Humberto Sanchez, Next Nasty Nomination Fight for Obama: Michael Boggs on the Hot Seat, RollCall, March 10, 2014, http://www.rollcall.com/news/home/debo-adegbile-defeat-emboldens-michael-boggs-opponents.

[4] Burgess Everett, Obama Abandons Judicial Nomination, Politico, Dec. 31, 2014, http://www.politico.com/story/2014/12/president-obama-abandon-michael-boggs-nomination-113898.

[5] Press Release, White House, President Obama Nominates Seven to Serve on the United States District Courts (July 30, 2015) (on file at https://obamawhitehouse.archives.gov).  

[6] See Greg Bluestein, Johnny Isakson Says Dax Lopez Deserves a Hearing: ‘I Believe in the Constitution’, The Atlanta Journal Constitution, Jan. 11, 2016, http://politics.blog.ajc.com/2016/01/11/johnny-isakson-says-dax-lopez-deserves-a-hearing-i-believe-in-the-constitution/.

[7] Seung Min Kim, Republican Senator Sinks GOP Judge’s Nomination, Politico, Feb. 2, 2016, http://www.politico.com/story/2016/02/dax-lopez-federal-judge-appointment-david-perdue-218460.

[8] Hunter, MacLean, Exley & Dunn, P.C. v. Frame et al., 507 S.E.2d 411 (Ga. 1998).

[9] Rockholdt Furniture Inc. v. Kincaid Furniture Co., Inc.; Rhodes Furniture Co., 1999 U.S. App. LEXIS 22426 (6th Cir., Sept. 10, 1999).

[10] Uboh v. Reno, 141 F.3d 1000 (11th Cir. 1998).

[11] George Henry, Lewis Pleads Not Guilty to Drug Charges; No Trial Date Established for Ravens Running Back, Wash. Post, Feb. 27, 2004.

[12] See supra n. 1.

[13] See id.

[14] See id.

[15] See id.

[16] Maghen Moore, DeKalb Judge Becker Gobbled Up in Corruption Investigation, The Atlanta Journal-Constitution, Aug. 26, 2015, http://www.myajc.com/news/local/they-wanted-head-the-wall-judge-becker-says/A8Vq5qrwcasZvFBlP26CLI/.

[17] Id.

[18] Press Release, Alston & Bird, Former Nomura Bond Trader Wins Jury Acquittal on Securities & Wire Fraud Charges (June 20, 2017) (on file at https://www.alston.com/en/insights/news/2017/06/former-nomura-bond-trader-wins-jury-acquittal).

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Liles Burke – Nominee to the U.S. District Court for the Northern District of Alabama

Judge Liles Burke, now 48, is one of three Alabama district court nominees put forward by the Trump Administration.  Having been a judge since his early thirties, Burke currently serves on the Alabama Court of Criminal Appeals.  Burke’s conservative record on and off the bench will likely endear him to Senate Republicans, while raising concerns among Democrats.

Background

Liles Clifton Burke was born in Arab, AL in June 1969.  The son of a prominent local attorney, Burke attended public school and graduated from The University of Alabama in 1991.  He went on to the University of Alabama Law School, graduating in 1994.

After graduation, Burke returned to Arab to join his father’s firm.  While working there, Burke also served as Arab’s Municipal Prosecutor and City Attorney.  In 2001, Burke was appointed a Municipal Judge for Arab.  In 2006, he was elevated to be a Marshall County District Judge by Republican Governor Bob Riley.

In 2011, Republican Governor Robert Bentley appointed Burke to a seat on the Alabama Court of Criminal Appeals, the chief intermediate court in the state for criminal issues.[1]  Burke was elected unapposed to a full term on the court in 2012 and still serves as an associate judge.

History of the Seat

Burke has been nominated for a seat on the U.S. District Court for the Northern District of Alabama.  This seat opened on August 31, 2013, when Judge Charles Lynwood Smith moved to senior status.[2]  While the seat opened only a year into President Obama’s second term, negotiations between the Administration and Alabama’s Republican senators fell apart and no nomination was ever made to fill the seat.[3]  President Trump announced Burke’s nomination to the vacancy on July 13, 2017.[4]

Jurisprudence

Burke’s first judicial position was as a Municipal Judge in Arab, Alabama.  In this capacity, Burke handled hearings on misdemeanor and traffic offenses, as well as issuing warrants and handling bond hearings.  Upon his elevation to the District Court, Burke handled more serious criminal matters, as well as civil proceedings.  In that role, Burke helped set up a family drug court and domestic violence court in Marshall County.[5]  During his four year tenure as a District Judge, Burke had only one case overturned by a higher court.[6]

As a judge on the Alabama Court of Criminal Appeals, Burke reviewed appeals from criminal cases brought in Alabama trial courts.  As their cases could only be appealed through a writ of certiorari to the Alabama or the United States Supreme Courts, Burke and his colleagues frequently were the final word on criminal law in Alabama.  During his tenure, Burke established himself as a part of the court’s conservative mainstream, rarely dissenting or concurring.[7]  The following patterns are established in his jurisprudence.

General Affirmance of Death Penalty Convictions

Burke has consistently voted to affirm the imposition of the death penalty,[8] even in circumstances that have led his colleagues to question its application.  In Lane v. State of Alabama, Burke affirmed the death penalty against a series of challenges by the defendant.[9]  Specifically, Burke rejected arguments that the defendant was mentally retarded, and that violent rap lyrics written by the defendant were unfairly used against him, noting:

“The fact that Lane wrote such lyrics makes it more likely, though not certain, that he held such violent behavior in high esteem. The fact that Lane valued that type of behavior is probative of both his motive and intent in shooting Wright and stealing his vehicle.”[10]

Judge Samuel Welch dissented on both those points, noting that the rap lyrics, written years before the crime, had no probative value in the trial.[11]  Further, on the issue of Lane’s mental disability, Welch criticizes the legal standard used by Burke to examine the case, noting:

“I do not believe that the majority’s statement is an accurate statement of the law.”[12]

Burke’s opinion was vacated by the U.S. Supreme Court, which remanded the case back to the Alabama Court of Appeals to be reconsidered in light of Hall v. Florida.  On remand, Burke again affirmed the death penalty, over dissents by Welch and Judge J. Elizabeth Kellum.[13]

Similarly, Floyd v. State involved a challenge by a white defendant under Batson v. Kentucky.[24]  The defendant argued that his rights were challenged by the prosecutor’s decision to strike 10 out of 11 african american venire members and 12 out of 18 women.  Floyd’s initial challenge resulted in a remand by the Court of Criminal Appeals to determine the race-neutral reason for the strikes.  When the trial court again ruled against Floyd, the Court of Criminal Appeals affirmed his death sentence on the second appeal.  However, the Alabama Supreme Court reversed and sent the case back down to the trial court.  On the third appeal, Burke wrote the opinion rejecting the Batson challenge.  Burke’s ruling was affirmed by the Alabama Supreme Court,[25] but reversed by the U.S. Supreme Court.[26]  On remand, the Alabama Supreme Court reinstated the death penalty against Floyd.[27]

Like in Lane and Floyd, Burke has shown a willingness to re-impose the death penalty where higher courts have reversed previous decisions on the issue.[14]  For example, in Wimbley v. State of Alabama, Burke joined a unanimous court in re-affirming the death penalty after it was vacated by the Supreme Court.[15]

Willingness to Consider Sufficiency of the Evidence Arguments

In contrast to his rigid stance on the death penalty, Burke has shown a willingness to overturn convictions based on “sufficiency of the evidence” arguments.  “Sufficiency of the evidence” challenges argue that, based on the evidence offered at trial, no reasonable juror would find that the elements of the crime have been proven.  During his tenure, Burke has written several opinions overturning convictions based on insufficient evidence.[16]

Burke’s willingness to entertain challenges based on “sufficiency of the evidence” is particularly surprising as trial judges and juries are generally given deference in factual issues, and federal judges from both political parties almost always reject appeals based on the “sufficiency of the evidence.”

Mixed Record on Criminal Procedural Protections

Burke’s record on protecting defendant’s Fourth, Fifth, and Sixth Amendment rights is decidedly mixed.  While Burke generally affirms convictions against criminal procedural challenges, he has demonstrated a willingness to side with defendants in some cases.

For example, Burke voted to overturn the conviction of a driver who was pulled over for driving with a cracked windshield.[17]  In his majority opinion, Burke noted that, as Alabama law does not specifically prohibit driving with a cracked windshield, the traffic stop was improper and all evidence obtained violates the Fourth Amendment.[18]  In contrast, most of Burke’s votes on Fourth Amendment issues have been against the defendant.[19]  Notably, Burke wrote for the majority in finding that a bag of narcotics recovered from a defendant’s pocket was in “plain view” and as such did not violate the Fourth Amendment.[20]  Judges Welch and Kellum dissented, pointing out that the police officers could not see the contents of the bag from the defendant’s pocket, merely the “knot” and as such, there was no probable cause to assume that the bag contained contraband.[21]

Similarly, Burke reversed a trial court judge who had found that a juvenile defendant’s waiver of his Miranda rights was not “intelligent and voluntary.”[22]  This opinion drew a sharp dissent from Welch, who argued that Burke failed to follow the deferential standard of review for trial court factual findings.[23]

Conservative Rulings on Divisive Issues

In addition to the rulings above, Burke’s votes in two cases involving divisive social issues may draw scrutiny.

Diggs v. State[28] – This case involved Alabama’s “Stand Your Ground” Law.  The defendant, charged with manslaughter, argued that he shot the victim in self-defense after the victim fired first.  The trial court refused to instruct the jury on self-defense.  The Court of Criminal Appeals reversed, finding that the jury should have instructed on both self-defense and the lack of a right to retreat.  Burke concurred with the result.

Gilbert v. State[29]– This case involved a constitutional challenge to Alabama’s sexual misconduct law.  Specifically, the defendant argued that, in criminalizing a consensual sexual encounter between two men, the law violated Lawrence v. Texas.  In writing for the court, Burke rejected this argument.  He noted that, even though the statute, on its face, criminalizes consensual “deviate sexual intercourse,” the defendant had not demonstrated that his own conduct was consensual, and as such, did not fall within the bounds of Lawrence. Judge Kellum dissented from this holding.

Political Activity

Burke is a Republican and has run for judicial office on the Republican Party line.[30]  In 2012, Burke was re-elected unopposed as a Republican to the Court of Criminal Appeals.  In addition, Burke has been fairly active as a donor, including political donations to Rep. Robert Aderholt, and the Alabama Republican Party.  Notably, as a sitting judge, Burke donated to Sen. Marco Rubio in 2015.[31]

Twitter Use

Since August 2012, Burke has maintained a Twitter account under the handle @JudgeLilesBurke.[32]  While the account has “Judge” in the title, it serves primarily as a personal account.  While the vast majority of the posts are innocuous, sharing family photos, his views on sports, and inspirational Bible messages, some posts focus on controversial subjects including religion and politics.

Religion

Burke, who is a committed Christian, frequently tweets and retweets inspirational Bible messages and verses.[33]  On occasion, Burke has tweeted his support for the expansion of Christianity.  For example, on Dec. 22, 2013, Burke retweeted a message from Pastor Steve Gaines, who said:

“I pray that the Lord will raise up more preachers in 2014 who will preach God’s Word compassionately & passionately with no compromise.”

Similarly, on Sept. 12, 2015, Burke posted an article from Christianity Today under the caption: “Christianity is surging in the heart of Islam.”

Burke has also tweeted messages against Islamic extremism, tweeting on March 31, 2015:

“68 Christian churches burned by Muslim extremists.  We must pray for those people of faith who are suffering.”

Similarly, on Feb. 21, 2015, Burke retweeted conservative journalist Sean Davis:

“I believe Obama when he says he’s a Christian.  I also believe ISIS when it claims to be Islamic.”

Burke has also tweeted articles criticizing agnosticism,[34] and atheism.[35]

Politics

Burke’s tweets on politics fall into two main categories.  The more numerous category of posts details partisan events for the Alabama Republican Party he attended as a judge.[36]  The second category of posts are more overtly political.  In tweets, Burke has criticized Bernie Sanders,[37] Edward Snowden,[38] and socialism.[39]  He also tweeted messages supporting Margaret Thatcher,[40] Ronald Reagan,[41] George H.W. Bush,[42] and Senator Richard Shelby.[43]  During the Alabama referendum elections in March 2016, Burke also tweeted messages of support for Amendment 1, which allows the legislature to restructure judicial retirement.

Overall Assessment

Critics of the Trump Administration will find much to dislike about Burke, from his conservative record on the Alabama Court of Criminal Appeals to his active affiliation with the Republican party.  Burke’s opinion in Lane, indicating that writing violent rap lyrics is probative of motive and intent to commit crimes, is likely to draw particular criticism.

Burke’s tweets are another source of concern.  Alabama’s Canons of Judicial Ethics instruct judges to “avoid impropriety and the appearance of impropriety,” “regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties,” and “refrain from political activity inappropriate to judicial office.”  It could be argued that Burke’s tweets on political issues, including his endorsement of Republican candidates and Amendment 1, violate these canons.  Burke’s tweets on religious issues do not raise a similar concern, but may draw criticism from those advocating a separation of church and state.

Burke’s defenders may argue that, given Alabama’s system of electing judges through partisan elections, Burke’s campaigning and involvement with the Republican party is inevitable.  They will also point out that Burke has frequently supported defendants in non-capital cases, and that his record does not suggest any bias in favor of prosecutors.

With a Republican majority in the Senate, Burke is almost certain to be confirmed.  If and when he makes it through the process, he will likely bolster the ranks of conservatives on the Alabama federal bench.

[1] Charles Whisenant, Burke is Appointed by Gov. to State Court, The Arab Tribune, Feb. 21, 2011, http://www.thearabtribune.com/news/burke-is-appointed-by-gov-to-state-court/article_9893de61-4e3e-5212-bb22-9713436d4d61.html.

[2] Brian Lawson, U.S. District Judge Lynwood Smith Retiring From Active Service, Will Continue ‘Substantial Judicial Duties’, AL.com, Aug. 2, 2013, http://blog.al.com/breaking/2013/08/us_district_judge_lynwood_smit.html.

[3] Compare Pema Levy, Jeff Sessions has a History of Blocking Black Judges, Mother Jones, Jan. 9, 2017, http://www.motherjones.com/politics/2017/01/jeff-sessions-blocked-black-judges-alabama/ with Mary Troyan, Judicial Vacancies in Alabama Pile Up, Montgomery Advertiser, April 22, 2015, http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/04/22/judicial-vacancies-alabama-pile/26166537/.  

[4] Press Release, White House, President Donald J. Trump Announces Fifth Wave of Judicial Candidates (July 13, 2017) (on file at https://www.whitehouse.gov/the-press-office/2017/07/13/president-donald-j-trump-announces-fifth-wave-judicial-candidates).  

[5] Supra n.1.

[6] See id.

[7] Burke authored concurrences or dissents in less than 20 cases out of the over 300 cases he oversaw.

[8] See, e.g., Johnson v. State, 2015 Ala. Crim. App. LEXIS 3 (Ala. Crim. App. Feb. 6, 2015); ; Thomas v. State, 155 So. 3d 270 (Ala. Crim. App. 2013). But see Smith v. State, 157 So. 3d 1007 (Ala. Crim. App. 2014) (reversing death sentence due to improper admission of polygraph evidence).

[9] See Lane v. State, 169 So. 3d 1076 (Ala. Crim. App. 2013).

[10] Id. at 1099.

[11] See id. at 1143 (Welch, J., dissenting) (“Even if writing rap lyrics about violence established that the songwriter held violent behavior in high esteem, and I do not agree that it does, it is sheer speculation to hold that valuing violent behavior somehow established motive or intent as to the robbery-murder of Wright.”).

[12] Id. at 1147.

[13] See Lane v. State, 2016 Ala. Crim. App. LEXIS 21 (Ala. Crim. App., Apr. 29, 2016).

[14] See, e.g., Russell v. State, 2016 Ala. Crim. App. LEXIS 81 (Ala. Crim. App., Dec. 16, 2016).

[15] See Wimbley v. State, 2016 Ala. Crim. App. LEXIS 83 (Ala. Crim. App., Dec. 16, 2016).

[16] See Caver v. State, 219 So. 3d 1 (Ala. Crim. App. 2016); McClellion v. State, 167 So. 3d 381 (Ala. Crim. App. 2014); Folds v. State, 143 So. 3d 845 (Ala. Crim. App. 2013); Black v. State, 74 So. 3d 1054 (Ala. Crim. App. 2011). But see Evans v. State, 82 So. 3d 766 (Ala. Crim. App. 2011) (affirming conviction against sufficiency of the evidence standards).

[17] JDI v. State, 77 So. 3d 610 (Ala. Crim. App. 2011).

[18] See id. at 621.

[19] See, e.g., Skipper v. State, 195 So. 3d 1075 (Ala. Crim. App. 2015); Pickering v. State, 194 So. 3d 980 (Ala. Crim. App. 2015); State v. Harris, 159 So. 3d 86 (Ala. Crim. App. 2014).  

[20] Nix v. State, 136 So. 3d 1101 (Ala. Crim. App. 2013).

[21] See id. at 1106 (Welch, J., dissenting).

[22] State v. RC, 195 So. 3d 317 (Ala. Crim. App. 2015).

[23] See id. at 326 (Welch, J., dissenting).

[24] Floyd v. State, 190 So. 3d 987 (Ala. Crim. App. 2013).

[25] Floyd v. State, 191 So. 3d 147 (Ala. 2015).

[26] Floyd v. Alabama, 136 S. Ct. 2484 (2016).

[27] Floyd v. State, 2016 Ala. LEXIS 132 (Ala., Nov. 18, 2016).

[28] Diggs v. State, 168 So. 3d 156 (Ala. Crim. App. 2014).

[29] Gilbert v. State, 2016 Ala. Crim. App. LEXIS 15 (March 18, 2016).

[30] Judges are elected in partisan elections in Alabama.

[32] https://twitter.com/judgelilesburke?lang=en

[33] See, e.g., Retweet of David Jeremiah, July 31, 2015.

[34] See Tweet, Jan. 28, 2015 (“Great article by Rabbi Wolpe.  ‘Being spiritual is not the same as being religious.’”

[35] See Tweet, Nov. 18, 2014 (“This is a great short read that made my day. ‘How a French Atheist Becomes a Theologian’”).

[36] See, e.g., Tweet, Sept. 3, 2016 (“I greatly enjoyed speaking to the Cullman County Republicans today about Alabama’s Court System.  Many old friends.”).

[37] See Retweet of Ben Shapiro, June 6, 2016 (“To be fair, if Sanders understood math, he wouldn’t be a socialist.”).

[38] See Retweet of Ari Fleischer, June 10, 2013 (“Real whistleblowers don’t flee the country.”).

[39] See Tweet, Apr. 16, 2016 (“For those in our country who seem to have forgotten that socialism always ends badly, look no further than this…”).

[40] See Tweet, Jan. 17, 2014 (quoting Margaret Thatcher) (“The facts of life are conservative.”).

[41] See Tweet, Oct. 4, 2014 (“The country I love sure needs another dose of this great man.”).

[42] See Tweet, June 26, 2016 (“I miss President Bush’s leadership and his keen sense of humor.”).

[43] See Tweet, Feb. 1, 2016 (“…Thank you, Senator, for all you do for our state!”).

[44] As a law student at Georgetown, Kelly spent a year as a Work-Study Reference Clerk at the Edward Bennett Williams Law Library.

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Claria Horn Boom – Nominee to the U.S. District Court for the Eastern District of Kentucky & the U.S. District Court for the Western District of Kentucky

Claria Horn Boom has a relatively low profile for a federal judicial candidate.  Unlike other nominees put forward by the Trump Administration, Horn Boom hasn’t written extensively on her judicial philosophy, participated in the conservative legal movement, or built a strong litigation record.  In a confirmation process often marred by controversy, Horn Boom’s lack of a paper trail may serve her well.  However, it makes it difficult for litigants to anticipate the type of judge she will be.

Background

A native Kentuckyian, Horn Boom grew up in a Republican family in a small town in East Kentucky, where her mother served as county clerk for Martin County.[1]  Horn Boom attended Transylvania University in Lexington, graduating summa cum laude in 1991.  Horn Boom then attended Vanderbilt University Law School, graduating in 1994 with the Order of the Coif.  Horn Boom went on to clerk for Judge Pierce Lively on the U.S. Court of Appeals for the Sixth Circuit.

In 1995, Horn Boom joined the Atlanta office of King & Spalding, focusing on product liability and tort cases.  In 1998, Horn Boom returned to Kentucky as a federal prosecutor, focusing on the prosecution of financial crimes.  In 2005, Horn Boom became the first executive director of the Kentucky Equine Education Project, which advocates for the horse industry.[2]

In 2006, Horn Boom joined the Lexington office of Frost, Brown, Todd LLC., one of the largest midwestern law firms.  As a partner, Horn Boom focuses on advising businesses and financial institutions on matters, including real estate, regulations and litigation.

History of the Seat

Horn Boom has been nominated to a shared seat for the U.S. District Courts for the Eastern District of Kentucky and the Western District of Kentucky.  This seat opened on January 8, 2013, with the retirement of Clinton appointee Judge Jennifer Coffman.  While Coffman’s retirement was announced in 2012,[3] President Obama never sent a nominee to the Senate for the vacancy.  While the exact reason for the nominee is unclear, it is likely that Obama was unable to agree on a nominee with Kentucky Senators Mitch McConnell and Rand Paul.  The Obama Administration did vet Courtney Baxter, a commonwealth’s attorney in Eastern Kentucky, and a Republican, for the vacancy, but ultimately decided against nominating her.[4]

Horn Boom’s name was first floated for the vacancy early in the Trump Presidency.[5]  She was ultimately nominated for the seat on June 7, 2017.

Legal Experience

Horn Boom has spent the majority of her legal career focused on advising and defending corporations and financial institutions.  As an associate at King & Spalding, however, Horn Boom represented General Motors in successfully defending a consent agreement granting the corporation credits against future taxes.[6]  Similarly, as a partner in Lexington, Horn Boom successfully defended Central Bank against a suit alleging violations of the Right to Financial Privacy Act.[7]  Horn Boom also helped implement a “$90 million acquisition of coal terminals and coal mines in Kentucky, Virginia, and West Virginia.”[8]

During her time as an AUSA, Horn Boom worked on financial crimes, including the prosecution of Gary Douglas Burks for a kickback scheme involving defense contracts.[9]  Horn Boom also successfully argued that the U.S. Attorney’s Office was not required to recuse itself in a case where the defendant had been represented by the newly appointed U.S. Attorney in his previous capacity.[10]

Political Activity

Horn Boom, who comes from a Republican family,[11] has a record of support for Republican candidates.[12]  Between 2001 and 2016, Horn Boom has donated approximately $4900 to Kentucky Republicans, including $1450 to McConnell and $1000 to Paul.[13]  Horn Boom also retweeted a message in support of Rep. Ryan Zinke’s candidacy for Secretary of the Interior.[14]

Overall Assessment

Unlike almost every other Trump judicial nomination, Horn Boom had a minority of ABA Standing Committee rate her “Not Qualified” for a federal judgeship.[15]  Typically, such ratings reflect either the relative youth of the candidate, lack of relevant experience, or ethical and temperament issues.  As Horn Boom is in her late 40s, and doesn’t seem to have any major ethical issues, it is possible that the low rating is based on Horn Boom’s focus on transactional law rather than litigation in the federal courts.

While Horn Boom has practiced as a federal prosecutor for several years, a search of both Westlaw and LexisNexis yields only a handful of cases where she is the counsel of record.  Furthermore, even her official profile at Frost Brown & Todd suggests that her primary expertise is in transactional law, not litigation.[16]

None of this suggests that Horn Boom is unqualified for the bench, or that she should not be confirmed.  Horn Boom is, by all accounts, an intelligent and non-ideological candidate.  Nevertheless, it is the responsibility of the Senate Judiciary Committee to probe Horn Boom’s background and judicial philosophy before voting to confirm.

[1] Andrew Wolfson, Two Women in Line for Federal Bench in Kentucky, Which Now Only Has One Female Judge out of 13, The Courier-Journal, May 9, 2017, http://www.courier-journal.com/story/news/2017/05/09/two-women-line-federal-bench-kentucky-which-now-only-has-one-female-judge-out-13/314847001/.

[2] See id.

[3] Jennifer Hewlett, U.S. District Judge Jennifer Coffman to Retire from the Bench, Lexington Herald Leader, March 7, 2012, http://www.kentucky.com/news/local/crime/article44159211.html.  

[4] See Andrew Wolfson, Baxter Being Vetted for Federal Bench, Clerk Says, The Courier-Journal, April 15, 2014, http://www.courier-journal.com/story/news/politics/2014/04/15/baxter-vetted-federal-bench-clerk-says/7755619/.

[5] See Wolfson, supra n. 1.

[6] See Fulton Cnty. Tax. Comm’r. v. General Motors Corp., 507 S.E.2d 772 (Ga. App. 1998).

[7] See Coffman v. Centr. Bank & Trust Co., 2012 U.S. Dist. LEXIS 136757 (E.D. Ky., Sept. 25, 2012).

[9] See United States v. Burks, 2001 U.S. Dist. LEXIS 24481 at *18 n.10 (W.D. Ky. Aug. 10, 2001). See also Former Executive Admits Role in Kickback Scheme, The Courier-Journal, July 1, 2000, https://www.newspapers.com/newspage/110487250/.  

[10] See United States v. Huff, 2002 U.S. Dist. LEXIS 15480 (W.D. Ky. Aug. 13, 2002).

[11] See Wolfson, supra n. 1.

[13] See id.

[15] See ABA Standing Committee on the Federal Judiciary, Ratings of Article III and Article IV Judicial Nominees, 115th Cong., https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.authcheckdam.pdf.

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